What is the State of the Jones Trespass Test After Florida v. Jardines?

In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court announced that the Katz reasonable-expectation-of-privacy test is not the only test for what is a Fourth Amendment search. According to Jones, Katz supplemented but did not replace the trespass test that the Court indicated had existed before Jones. According to Jones, “[t]respass . . conjoined with . . . an attempt to find something or to obtain information” constitutes a search.

In a forthcoming article that I updated today on SSRN to the near-final version, The Curious History of Fourth Amendment Searches, I looked closely at the history of the Fourth Amendment search doctrine and concluded that no trespass test existed before Katz. Here’s my summary from the introduction of the article:

The apparent restoration of a pre-Katz trespass test in Jones reflects the widely-shared assumption that pre-Katz search doctrine was in fact based on trespass law. Like many Fourth Amendment scholars, I have previously echoed the common wisdom that this is true. But because the point was only of historical interest, I had not looked closely at pre-Katz law to assess its accuracy. Jones makes the history of Fourth Amendment law doctrinally significant, however, meriting a more careful look at the early understandings of “searches.” This essay explores the history of the Fourth Amendment and reaches the surprising conclusion that no trespass test was used in the pre-Katz era. Neither the original understanding nor Supreme Court doctrine equated searches with trespass. Jones purports to revive a test that did not actually exist.

In short, the common wisdom is false. Before Katz, the Court did not use a specific formulation to identify what counted as a Fourth Amendment search. Supreme Court cases on the meaning of “searches” generally reasoned by analogy to the canonical example of home invasion. But the decisions used no particular methodology to guide the analogy, and opinions sometimes focused on privacy or the perceived invasiveness of the government’s conduct. The Court began to focus on physical intrusion as a guide starting in the 1920s. But even decisions focused on physical intrusion eschewed reliance on the technicalities of trespass law. No historical trespass era existed. Surprisingly, the first case applying a trespass test to identify Fourth Amendment searches appears to be United States v. Jones.

The absence of a pre-Katz trespass test means that courts are going to have to articulate what the new trespass test means, I argued:

Both today and when the Fourth Amendment was adopted, trespass has been a protean concept that can be construed broadly or narrowly. Trespass law today may be different in some ways than trespass law then, raising questions of which era of trespass doctrine counts. Because the trespass test did not exist before Jones, pre-Katz law does not directly answer these questions. Courts called on to interpret the trespass test must do so with little in the way of history or precedent to guide them.

In light of that challenge, I was particularly interested to see how the Supreme Court interpreted the Jones inquiry in today’s decision in Florida v. Jardines. Jardines was 5-4, and Justice Scalia was the senior-most Justice in the majority; that means he assigned the opinion to himself. Given that Justice Scalia generally is not a fan of writing Fourth Amendment opinions, it’s possible that he kept the case to himself to try to further establish his non-Katz approach to search doctrine from Jones. Either way, Jardines is the first Supreme Court application of the Jones test after Jones itself.

But just what kind of test is it?

Notably, Justice Scalia nowhere uses the word “trespass” to describe the Jones inquiry. Instead, he mostly sticks to the concept that the Court had used in the 1961 Silverman case, a few years before Katz, of physical penetration or intrusion into a constitutionally protected area. Here’s the heart of Scalia’s analysis in Jardines:

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U.S. ––––, ––––, n. 3 (2012) (slip op., at 6, n. 3). By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring in the judgment).

That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—- in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

It’s very interesting that Justice Scalia does not use the word “trespass” to describe the Jones test. Justice Scalia also does not use the word trespass when he describes the holding of Jones later in the opinion. He writes:

[B]ecause the GPS receiver [in Jones] had been physically mounted on the defendant’s automobile (thus intruding on his “effects”), we held that tracking the vehicle’s movements was a search: a person’s “Fourth Amendment rights do not rise or fall with the Katz formulation.

Again, note the absence of the word trespass, which was the term used several times in Jones. Instead, the language chosen here is “physical mount[ing]” that “intrud[es]” on protected areas. The absence of the word trespass is particularly interesting given that Justice Alito’s dissent criticizes the majority for misapplying trespass law. It’s at least a possibility that Justice Scalia not address this point in detail in his majority opinion because he wasn’t actually applying a technical trespass test.

With that said, it’s not at all clear that Jardines interprets the Jones test as a physical intrusion test that is necessarily different from trespass. Throughout Jardines, Justice Scalia refers to the Jones inquiry as “property based.” Consider this passage:

The Katz reasonable-expectations test “has been added to, not substituted for,” the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas. Jones, supra, at ___ (slip op., at 8).

Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

How to make sense of these different passages?

One way to square them is that perhaps the Jones test is not about the technicalities of trespass doctrine but rather about physical intrusion into property. Under this reading, the Jones inquiry protects private property from physical intrusion. What counts as a “physical intrusion”? Most cases will be easy — just watch the officer or tools he is using as they cross into the constitutionally protected area of the house, paper, person, or effect. The facts of Jones then become the closer case, with a “physical mount[ing]” of the government’s device to the car deemed a sufficient interference with the property interest to “intrude” onto the effect of the car. The issue isn’t the technicalities of trespass law, but rather the presence of physical intrusion into property owned by the person — specifically, their houses, persons, papers, and effects.

If I’m right about that, a case that is somewhat similar to Jones is the long-forgotten per curiam decision in Clinton v. Virginia, 377 U.S. 158 (1964), which had facts similar to those of Silverman except the microphone was in the wall rather than through the wall. No one remembers Clinton because the the Supreme Court ruled for the defendant in four words – “The judgment is reversed” — with a citation to Silverman. But at least looking at the facts from the state court opinion it reversed, Clinton might help bolster the lineage of Jones with a pre-Katz case applying the Silverman “physical penetration” test where the listening device was on the edge of the constitutionally protected area rather than clearly inside it.